Advocate, he hoped that the suggestion that each bill for amending existing Statutes should repeal those Statutes, re-enacting so much as was to be retained and enacting the new matter, would receive consideration. For this would effect a self-adapting consolidation of the Statute Law. In the course of a few years we should, by the adoption of this rule, have the whole of each branch of the Statute Law, in one chapter.

Dr. WADDILOVE did not think it necessary to say anything in defence of the present method of legislation; it had worked well on the whole, and while exceptions might be taken to some of its results, yet undoubtedly the good it had effected preponderated over the evil. Still it might be desirable to have a Minister of Justice to supervise the bills of private members, to put their sometimes crude drafts into shape, to detect inconsistencies, and suggest amendments. He concurred in Dr. Barclay's and Mr. Ryland's opinion that amending Acts ought to repeal the old ones, and in themselves contain the whole law on the subject to which they referred. Already there were four Divorce Acts: why not fuse them into one, expunging all repealed and useless matter, and retaining only what had proved to be useful? That was what had been done with the Merchant Shipping Acts; he believed he might say, to the great satisfaction and advantage of all who had any concern with them.

The PRESIDENT said that, while he admitted the existence, to some extent, of the evils complained of, he had difficulties about the remedy to be applied to them. We could hardly resort to the old system under which Acts used to be passed by the Scotch Parliament. Under it all the bills intended to be proceeded with were introduced on the first day of session, and straightway remitted to the Lords of the Articles-a small standing committee, who did all the work of legislation; and Parliament never saw them again until the last day of session, wheu it was pro forma asked to adopt them. And what was the result? Take the first Scotch Bankruptcy Act: two centuries had not sufficed to settle its meaning. Under the present system there was nothing so bad in that. It might be productive of some inconveniences, but he thought they were exaggerated. He could mention many instances in which Acts of the greatest importance had raised almost no question of interpretation or construction. For example, the series of real property Acts commenced by the present President of the Court of Session, and continued by his successors in the office of Lord Advocate, though dealing with matters of infinite importance, had yet raised difficulties of almost incredible rarity. With such care as had been bestowed on them, legislation, even under the present system, need be marked by few or no such mistakes as those so well pointed out in the amusing paper of Sheriff Barclay.

On the reading of Mr. Fraser's paper, printed at p. 149.

Dr. PANKHURST said it was of course much more easy to consolidate and even to codify such a mass of law as that referred to in the paper-a body of law consisting mostly of principles-than it was to operate on modern law, which deals so much with ever-changing procedure. But was the learned Sheriff prepared to submit such powers as those of consolidation to a Department? Did he propose virtually to exclude the action of the legislature? If so, that was a proposal to which he, for one, was not quite prepared to assent.

The LORD ADVOCATE, as regarded the repeal of expired statutes, and those which had gone into desuetude, quite agreed with his friend Mr. Fraser; it was right and proper, and would cause little difficulty except in the determination of what statutes were in desuetude and what were not. But if they attempted to renew in modern language the law of those old statutes which were still in observance, they would come on a rock in which the attempt was sure to split; for the law was not really in the statutes as they stood in the statute-book, but in these statutes as explained and expanded by a long train of judicial decisions. If they once attempted to put into language the result of those decisions, and departed from the language of the original statutes, they neither knew what they did, nor the effect which a court of law would give to the new language. He was therefore of opinion that, until they were in a position to codify, it would be best to confine

themselves to the express repeal of statutes in desuetude, and not attempt any modern re-enactment of those still in observance.

Mr. FRASER in reply said, that the Act of Parliament he proposed would be contained in four or five lines to the effect that-" Be it enacted that all the Acts contained in Schedule A, hereto appended, are repealed," and "Be it enacted that all the Statutes contained in Schedule B are in force." His reason for asking for the second enactment was just what he had said in the Paper, namely, that they did not know what Statutes were in desuetude.

THE LAW OF EVIDENCE.

On the reading of Mr. Marshall's Paper, printed at p. 172, the following discussion took place:

:

Mr. SAMUEL POPE, in reference to the first matter dealt with in Mr. Marshall's Paper, the admission of the testimony of an accused party, was of opinion that if the evidence of the prisoner were made admissible, it would practically be compulsory because the absence of a prisoner as a witness would necessarily, in the minds of the jury, be considered an admission of guilt, and a conviction would be almost an absolute certainty. If that were so, the real question was, ought the prisoner to be made a compulsory witness? It was not the discovery of the truth in any particular instance that was of most interest, but the means of arriving at truth in general, and that with a due regard to the protection of the liberty of the subject. It might be that in individual cases of very rare occurrence, prisoners were prejudiced by the want of their own testimony; but would not the general admission of it be fraught with much more grievous evil, because affecting a much greater number of persons? The experience of continental countries, in his opinion, proved conclusively that, as a general rule, accused parties would be much more prejudiced than benefited by being compelled to give evidence on their own trial. In England, if witnesses were called for the defence, the prosecutor had the right of reply; in Scotland the accused had always the last word; a practice more equitable than that of England, and which gave the prisoner all the advantage that he could derive from his own examination. He put in his declaration as part of his case; and if it were at all a plausible statement, the jury were sure to give it the weight to which it was entitled, and even if it were withheld by the prosecutor when asked for by the prisoner, the mere fact of its being so withheld was sure to tell in favour of the latter.

Sheriff BARCLAY condemned the practice of taking written declarations. With regard to the making of a prisoner a witness for himself, he thought that should only be resorted to in minor offences; but he much questioned whether it would be prudent to adopt such a course in regard to capital offences. With reference to the subsequent trial of witnesses, he agreed with Mr. Marshall that only a socius should receive protection.

Mr. ADAIR said, that in Ireland the difficulty was to prevent a man hanging himself by the testimony of his own witnesses; and he was sure that most Irish criminals would willingly undergo pretty severe punishment for the pleasure of hearing their own witnesses, and above all themselves, speak before a judge and jury. To make the examination of a prisoner at the bar compulsory would be a great saving of the public money; for in 99 cases out of 100, parties placed at the bar were guilty; and by examining them a greater proportion than at present would be convicted.

Lord ARDMILLAN acknowledged the excellence of Mr. Marshall's Paper, but could not agree with him on all the three subjects. With regard to declarations, he had been familiar with that subject for many years, and had expressed the opinion at the bar which he still entertained-that no further declaration should be taken in any case than to ask the name, residence, and vocation of the accused, and then to say-" Have you any statement to make?" The Scotch mode of taking a declaration was, even in the best and kindest hands, too apt to run into a species of examination which was not fair. As regarded the second topic dealt with in the paper under discussion, he felt the greatest objection to the introduction

of the change contemplated-the making it competent for an accused person to tender himself as a witness. He was deliberately of opinion that they could not make a man competent as a witness for himself without substantially making his withholding his testimony evidence against himself. All parties agreed that the accused ought not to be compellable as a witness, and to his mind that settled the question. Since a man could not be a witness against himself by his words, he thought it would be a great crime to make him a witness by his withholding his explanation. The true theory of the law was that all crime ought to be proved by testimony, by real evidence apart from the accused. In regard to the last matter touched upon by Mr. Marshall, he was of opinion that if they took a man's evidence on oath in regard to the material substance of an accusation, and if he knew that he was speaking against his own life and liberty, they were bound to protect him. If the public prosecutor said he wanted this man's evidence for public purposes, and he could only have it by protecting him, then he thought the law was clear, and that the man could not be tried for the offence. There was no authority, no precedent, not a solitary instance in practice, in which a man who had been sworn as a witness for the Crown on the material substance of a criminal prosecution had ever been prosecuted. He referred to the case of Hare in the trial of Burke as a convincing example of the accuracy of his statement. What might be thought of the desirableness of a change was another matter, but that that was the law in Scotland at present he did not entertain a doubt. They never could attempt to prove the guilt of any man by his own oath, and when they put a man upon oath the words of that oath carried with them an obligation on the part of the public prosecutor that as he required that person's evidence for the Crown, and could not get his evidence unless he protected him, he could not be prosecuted.

Mr. NAPIER said, he had the misfortune to differ from Lord Ardmillan as to the propriety of admitting the evidence of accused parties. It had been said that to make their testimony "competent" was substantially the same thing as to make it "compulsory." That word "substantially" made all the difference. Was there any instance in which an accused person really innocent did not feel the injustice of having his mouth closed? There could be little doubt that very few innocent men are put on trial, especially in Scotland and Ireland, which both give an accused party the advantage of an examination before trial. If that were so, where was the hardship of convicting them even on their own testimony? The hardship lay not on the guilty many, but on the innocent few; upon the innocent man who saw himself convicted because he himself, the only person who knew the real truth of facts which seemed to tell against him, was not allowed to state it. Mr. Greaves, than whom no one was better qualified to speak on the subject, had communicated to him (Mr. Napier) a paper taking an opposite view of the question; a view supported by the same arguments that were now reproduced-that the absence of the evidence, if competent, was tantamount to the confession that, if given, it would have been unfavourable. Well, if the party be guilty, why should the absence of his competent testimony not be taken as proof presumptive of his guilt? Why shut up sources of truth for the innocent, for the sake of saving the guilty?

Sir CHRISTOPHER RAWLINSON understood Mr. Greaves' principal argument against admitting the evidence of prisoners at the bar to be, not that guilty parties might thereby be led to aid their own conviction, but that innocent persons, caught in the toils of a subtle cross-examination, might be betrayed into inconsistencies and contradictions, and thereby raise the semblance of a case against themselves. That was the argument that weighed with him (Sir C. Rawlinson). He was not afraid that guilty men would escape because they were not examined, but he was afraid that the innocent,-whether women, children, or men of weak health, nerves, or intellect, might suffer from their being examined. Referring to Lord Ardmillan's statement of the law of Scotland on the subject of the competency of indicting a party who had given evidence on oath at the trial of another party for the same crime, he said he had heard it with much surprise: he had been given by many Scotch lawyers of eminence to understand that it was the very reverse of that stated by the learned judge. No authority had been adduced by him in support of his view, except that of Hare. But Hare's case was quite aside from

the real question at issue; for Hare, when he was put in the witness-box by the Crown prosecutor, was known to have been a socius criminis, and it was as a King's evidence that he was made use of. The law laid down in that case was quite in accordance with the usual practice in England, where an accomplice offering himself as Queen's evidence, though therefore not exempt from indictment, is yet usually acquitted as a matter of course. But the question raised in the paper under discussion, was whether men put into the witness-box by the public prosecutor, not on the footing of Queen's evidence as confessedly socii criminis-but as ordinary witnesses, were on that account to be free from indictment for the same crime ever after. It had been said that by putting him in the witness-box, the prosecutor entered into an implied contract with him of subsequent immunity. Such an implied contract, however, could arise only when the prosecutor knew him to be guilty; but there would be no such contract when, at the moment of his entering the box, the prosecutor had no suspicion of the witness's guilt.

The LORD ADVOCATE, in reference to the first point raised in Mr. Marshall's very able paper, said he had the greatest respect for the opinions on the other side, but he thought if the accused were put in all cases into the witness-box, they would frequently leave an impression on the jury contrary to the real facts of the case; and he held that one miscarriage of the kind, by which an innocent man was made to convict himself would be a greater misfortune than a hundred where they would obtain the ends of justice by putting the accused into the witness-box. As to the other question, after the full discussion that had taken place elsewhere, he would not enter on it at length, but his opinion was that there was no point better settled by the clearest general authorities in the law of Scotland than that whenever a man was put on his oath by the criminal prosecutor, he could not be indicted for that crime relative to which he had been examined. The laws of England and Scotland on this subject were entirely divergent. The law of England, as laid down a hundred years ago by Lord Mansfield, was that a socius might be examined as a witness, but if he did not convict the prisoner he must be hanged on his own confession. That was the law of England still, only they gave him the benefit of a trial; but with regard to the law of Scotland in cases occurring as far back as 1780, coming down to the case of Burke and Hare, and to the present day, it had never been questioned that the law was such as he had stated it, until it had been, he thought, most rashly questioned on the present occasion. He would not go into authorities, but he referred those who held the opposite view to a number of cases noticed in a recent number of the "Journal of Jurisprudence," and to a judgment of the late Lords Meadowbank and Mackenzie, in which it was ruled that the mere act of putting a witness in the box, and examining him upon oath, whether he was known to be an accomplice or not, was quite sufficient to prevent the Lord Advocate from afterwards trying that man. But not only was there abundance of evidence on this side of the question-there was not a scrap of evidence on the other side. With regard to the recent M'Lachlan case, just imagine that the jurymen, when sitting listening to Fleming giving his evidence, had they known that he could be tried on the charge, what effect would it have had on their minds? He held it would have been most prejudicial. He was sorry that the case had been raked up, but he stated again that there was no authority whatever in support of the opposite view which had been taken by his learned friends.

Mr. SKELTON could not concur in the observations which had fallen from the Lord Advocate and Lord Ardmillan on the second point under discussion. He had communicated with a great many members of the profession in reference to this matter, and he must say that he found the opinion of the majority of those members was the opinion expressed in the House of Commons by Mr. Murenamely, that there was no inflexible rule in the law of Scotland which could prevent a person who had been examined as a witness in a trial from being afterwards tried for the offence. It was said that there was a compact between the public prosecutor and the witness whereby the former guaranteed immunity to the latter as the consideration for his evidence. This compact might be express when the witness was known to be a socius or it might be implied under the same circumstances. But no such compact could arise by implication when there was no suspicion on the part of the prosecutor that the individual he is putting

in the witness-box is himself the guilty party. The compact upon which so much stress was laid could, from the very nature of it, be only with one known or suspected to be guilty, not with one believed to be innocent. The rule against indicting a witness, therefore, it appeared to him, was not an inflexible one as maintained by the Lord Advocate; who had been able to adduce no authority for his proposition but the somewhat questionable one of a contemporary legal periodical.

Lord BROUGHAM said, he would not enter upon the disputed question with which Mr. Skelton had been dealing, but confine himself to making a single observation with reference to the measure he had so frequently introduced-namely, that it should be put in the option of a criminal accused to be examined. The only objection made to giving that option had been that if the person did not avail himself of it, either from having distrust of his own faculties of standing a cross-examination, or for any other reason quite independent of his being guilty, nevertheless his refusing to be examined might be held by the jury to be an indication of consciousness of guilt. That was the only reason he had ever heard urged against the measure. His Lordship then referred to the case of Mr. Blundell, which had recently been brought before Parliament, as showing that a person who had a grudge against another might indict that person for a misdemeanor; and, in consequence of the existing state of the law, a conviction might be obtained against an innocent person through his being put in a position where he was unable to explain certain circumstances. Now, in the last measure introduced on this subject, it was stated that it might well be restricted to cases where there was a private prosecutor and that private prosecutor was himself examined. The late Lord Campbell was in favour of this view; and the last bill on the subject went to this extent only, that, in cases of misdemeanor, where the prosecutor was examined, the defendant should be examined also.

A Paper on "The Law of Evidence as Affecting the Administration of Justice in Sheriff Courts," was read by MR. SHERIFF Watson, of Aberdeen, who said that formerly legislators and lawyers were of opinion that parties to a suit and their nearest relations could not be trusted as witnesses, and were not allowed to give evidence on oath; but of late opinions have changed, and now everyone may offer himself as a witness. The new is better than the old system, when the witnesses are examined in presence of the judge who decides upon their testimony, but it cannot be so reckoned when an opposite practice prevails. In England the witnesscs are always examined before the judge and jury who decide; but, in the ordinary Sheriff Court in Scotland, the judge who tries and the judge who finally decides are different persons. The former is the resident, the latter is the non-resident sheriff. The one is intimately acquainted with the character of the witnesses, and can readily discriminate between the false and the true, the other is not possessed of such knowledge, and cannot from the recorded testimony form a correct estimate of its worth. To add to the difficulty, the recording judge is required to write the evidence by way of narrative, and not of question and answer, consequently all the witnesses, learned and unlearned, wise and foolish, seem to speak exactly alike, and the nonresident judge, who finally decides, can hardly form a correct estimate of the worth of their testimony. By this mode of proceeding, the judge recording the evidence cannot easily subject the witnesses to a strict cross-examination, and in giving judgment, he has the feeling